Conseil d'�tat

In France, the Conseil d'�tat (council of state) is an organ of the French national government. Its functions include assisting the executive with legal advice and being the supreme court for administrative justice.

Table of contents

1 Organisation

1.1 The litigation section (section du contentieux)
1.2 The section of the report and studies (section du rapport et des �tudes)
1.3 The other administrative sections

2 Decisions of the Conseil d'�tat
3 External links

Organisation

The Conseil d'�tat is headed by a vice-president. Its members are generally former graduates of the �cole nationale d'administration.

The Conseil is divided into 6 sections:

The litigation section (section du contentieux)

This section is the supreme court for the system of administrative justice. It hears both recourses against decrees and other executive decisions from the President of the Republic and the cabinet ministers, as well as appelate cases from lower administrative courts. Its decisions are final.

The Conseil d'�tat examines the conformance of regulations and administrative decisions with respect to higher decisions, the general principles of Law, statute law, the Constitution and the general constitutional principles. The general principles of Law are principles that are not found in any statute, yet derive from the spirit of the body of law; they are discovered by the Conseil and thus made into case law.

The Conseil has full latitude to judge on the legality of any decision from the executive branch, except for the very narrow category of "acts of government" where it judges itself incompetent. The Conseil itself has judged that such acts are restricted to:

relationships between the executive branch and the legislative branch (whether to submit a law project to parliament...)
acts that cannot be separated from the foreign policy of France.

See the analysis on the Conseil's site for more information (in French).

The procedure is inquisitorial: the litigant writes a letter (and generally pays a nominal fee) to the Conseil, stating precisely what happened and why he feels that the government acted illegally; the Conseil then starts an inquiry, asking the other party (generally, a government or government agency) for precisions, and so on until the Conseil has a clear picture of the case. The litigant does not have the burden of proof: the Conseil may well decide that the litigant was right and the government was wrong if the information supplied by the litigant was sufficient to enable it to find the missing proofs. Of course, both parties may supply supplemental information until the case is ready for final judgment.

In some cases, it is unclear whether a case should be heard before administrative courts or judiciary courts. In this case, the tribunal des conflits, made of equal number of members of the Conseil d'�tat and of judges from the Cour de Cassation and presided by the Minister of Justice is summoned

The section of the report and studies (section du rapport et des �tudes)

It writes the annual report, conducts studies and helps in ensuring the proper execution of litigation decisions.

The other administrative sections

The finance section (section des finances), interior section (section de l'int�rieur), social section (section sociale), public works section (section des travaux publics) reviews all ordinances, all statute projects drafted by the Council of Ministers as well as all decrees for which that review is compulsory (d�crets en Conseil d'�tat). Such reviews are nonbinding, but they are cumpulsory.

The Conseil d'�tat may also review legal problems adressed to it by the Ministers. It is also charged with the inspection of administrative courts.

Decisions of the Conseil d'�tat

As it renders final judicial review over almost all acts of the executive branch, the decisions of the Conseil d'�tat may be of considerable importance, often not for the actual case judged, but for the implications on the interpretation of law. While France is a civil law country and there is no formal rule of stare decisis, lower courts follow the constante jurisprudence of the Conseil d'�tat. The major decisions of the Conseil d'�tat are collected into books and commented by academics; the official site of the Conseil carries a list of comments on important decisions. The interpretation of points of law forms the Conseil's doctrine.

The decisions are named after the individual(s) or body who has appealed to the Council. The name of female individuals may be preceded by Dame and the name of widows called by their husband's name Veuve.

Among the important decisions, let us cite:

February 19, 1875 - Prince Napol�on
The fact that a decision has been taken with political considerations does not make it an "act of government" that cannot be judged upon by the Conseil (reversal of previous doctrine).
May 28, 1954 - Barel. Freedom of opinion of civil servants.
The administration cannot exclude people from applying for civil service positions solely on the basis of their political opinions. (Some Communists were refused admittance at the �cole nationale d'administration).
October 19, 1962 - Canal, Robin & Godot
The executive branch may take decisions by ordinance only in the narrowly defined field authorized by the habilitation law. The executive cannot decide the creation of courts whose procedures and absence of recourse are outside of the general principles of criminal law.
This decision was the source of strong tensions between the Conseil and president Charles de Gaulle.
February 3, 1989 - Alitalia corporation
The executive branch has the duty to cancel illegal regulations, even if they were initially legal. Regulations must conform to European Union directives whose transposition period has expired.
October 27, 1995 - Commune of Morsang-sur-Orge, the "dwarf throwing case".
The respect of human dignity may be included in "public order". (A mayor had prohibited a dwarf throwing attraction on grounds of public order, since this attraction did not respect human dignity.)
This decision nevertheless stops short of including morality in public order.

External links

In Switzerland, Conseil d'Etat is the name of the council heading the cantonal government of French-speaking cantonss. It's not to be confused with the Conseil des Etats (or Council of States) which is a chamber of the Swiss parliament.